Sewall & Day Cordage Co. v. Boston Water Power Co.

Holmes, J. These are three writs of entry, brought to recover three adjacent parcels of flats, bounded by Muddy River Creek, an arm of the full basin of the Back Bay in Boston. The demandants are owners of the upland. The tenants are [64] grantees of all the right of the Commonwealth in the flats and channels in the full basin, by a deed dated. December 27, 1856. 1. Portions of the premises lie between the original ordinary and extreme low-water marks. The tenants contend that these portions never belonged to the demandants’ predecessors in title under the ordinance of 1647, and that the words of the ordinance, “ shall have propriety to the low-water mark,” should be construed as meaning to the ordinary low-water mark. But it has been settled for fifty years that they mean to extreme low-water mark. We cannot disturb a rule of property which has been acted on so long, on the strength of general reasoning. Sparhawk v. Bullard, 1 Met. 95. Attorney General v. Boston Wharf Co. 12 Gray, 553, 558. Wonson v. Wonson, 14 Allen, 71, 82. Attorney General v. Woods, 108 Mass. 436, 440. 2. Formerly, at the lowest spring tides, all the demanded premises were bare of water, except the fresh water running in Muddy River, a natural stream, which in its minimum flow was a mere thread. At that time, therefore, the title of the riparian owners extended to the thread of the stream or creek. Boston v. Richardson, 13 Allen, 146, 155; S. C. 105 Mass. 351, 355. It follows that the demandants are entitled to recover all the demanded premises, unless something has happened to deprive them of some part of what once belonged to their predecessors in title. The tenants put their case on the doctrine of accretion, assuming as their starting point that the channel of Muddy River belonged to the Commonwealth and passed by the grant of 1856. Perhaps it might be a sufficient answer to say, as we just have said, that this first assumption is a mistake with regard to the channel upon the premises, and that therefore there was no land to which the supposed accretion could attach, the lower channel being cut off by the bar hereafter mentioned, on which the tenant relies. But we will consider the facts a little further. In 1820 and 1821 the Mill Dam and Cross Dam were built, and in consequence of these dams, their gates and sill, the placing of stones in the sluiceway, and other obstructions, the channel between the premises and the dams had become more or less filled up with mud, etc. This sediment of mud, called [65] by the tenants a bar, in connection with tbe sill of tbe dam, established an artificial low-water mark, which encroached upon the premises above mean low-water mark. The tenants argue, that, while the sudden raising of the water by the artificial structures made no change in the title, the subsequent gradual filling of the channel above the structures did make a change, and that the case is one of the gradual encroachment of water in consequence of natural and artificial causes combined. But we do not interpret the report as disclosing such a case. It is found that the accumulations were not sufficient to act as a dam and to resist the water, or to prevent its resuming its natural level had the artificial obstructions been removed. A series of artificial structures cut off the natural flow of the water, and set it back. Of course such an interruption was followed in time by more or less filling up and settling of sediment above it; but, as we read the report, the cause of the whole change is to be found in the dams and their adjuncts. Furthermore, no change has taken place in the locus. No part of it has been washed away. Its relation to low-water mark is unchanged. After the change, as before, it was still unaffected by the ebb and flow of the tide for an hour and a half at extreme low water. What the obstructions did was simply to leave behind an inland salt-water lake when the tide was out. As was observed by the demandants’ counsel, this often happens on the sea-shore, but no one supposes that the low-water mark or the limits of private ownership are affected by the fact. For the reasons stated, we are of opinion that the tenants have no title by accretion. They do not argue that the demand-ants’ land was taken by the Boston and Roxbury Mill Corporation by the right of eminent domain, when that company built its dams and flooded the premises. Boston & Roxbury Mill Corp. v. Newman, 12 Pick. 467, 482. Boston Water Power Co. v. Boston & Worcester Railroad, 16 Pick, 512, 522; S. C. 28 Pick. 360, 394. Lowell v. Boston, 111 Mass. 454, 466. Isele v. Arlington Savings Bank, 135 Mass. 142, 143. Nor is it contended that the demandants have lost their fee by adverse possession. It does not appear that the first-named tenant or its predecessor in title has done more than it had a right to do [66] under its charter, or that the demandants have been disseised for twenty years, if at all. Tremont Improvement Co. v. Boston Water Power Co. 10 Allen, 261. Eastern Railroad v. Allen, 135 Mass. 13,16. Drake v. Curtis, 1 Cush. 395, 416, 417. Charles v. Monson & Brimfield Manuf. Co. 17 Pick. 70, 77. We do not discuss these questions at length, as the tenants do not seek to raise them. Judgment affirmed.